Myth Buster Series - Can an employer terminate an employee for misrepresenting their qualifications
This is a story about an employee who misrepresented his qualifications, was terminated for this reason once the employer found out and who tried to later bring a case of unfair dismissal before the Fair Work Commission (Jaques v The McCarroll Motor Group  FWC 5793).
The brief version of the facts include the following:
- The employee misrepresented how close he was to achieving his trade qualifications during his initial interview;
- The employer tried to work with the employee to solve the issues;
- The employee failed to improve on his qualifications over a period of time; and
- The employer terminated the employee for various reasons including a loss of trust and confidence and the inability for the employee to fulfil the inherent requirements of the position.
The employer in this case had discussed with the employee the current state of his qualifications and the employee had indicated he had six modules left which could be completed in a limited time period. The employer, armed with this knowledge, hired the employee with the understanding that he would soon be qualified. After several months discussions were held in which, among other things, the employee asked for a pay rise. The employer, on querying the status of the employees movement towards his qualifications, was informed that the employee had not made any progress and that he was in fact further away from qualifying than originally represented (nine modules). The employer created a temporary position for the employee to fulfil while completing his qualifications. After a further period of months the employer communicated with a training organisation to gauge the employee’s status and was informed that not only did the employee misrepresent the initial state of modules outstanding but the subsequent amount of modules was also incorrect and the employee was in fact fourteen modules away from completing his qualifications. Armed with this new information the employer terminated the employee.
The Commissioner ultimately found that “the employer's subsequent discovery meant that it lost trust and confidence in the applicant. Further, the applicant’s incapacity to obtain the formal trade qualification within a reasonable period of time, meant that he was unable to fulfil the inherent requirements of the position to which he had been appointed.......Consequently, the employer dismissed the applicant for valid reason relating to the applicant's capacity and conduct. ”
Whilst there are a lot of factors to this story, the moral of it all is that (subject to a number of caveats) a candidate for prospective employment misrepresenting their skills, qualifications or experience to the employer, which the employer relies upon in employing the person, may subsequently give rise to a right for the employer to terminate the employee.Back